The separation of powers (SOP) is one of the principal doctrines in the UK and is a theory found in most modern states. This political, not legal, the doctrine was first developed by Aristotle who identified the three branches of a constitution required for a stable nation as “The Deliberative, the officials and the judicial element”. To prevent “despotism” or “absolutism” power should not be concentrated in one body or one person. Today, the three branches are known better as the Legislature, the Executive, and the Judiciary.
Since Aristotle, the development of the theory of the SOP is widely attributed to the works of French nobleman Baron de Montesquieu. In his eighteenth-century book, “L'Esprit des Lois” (the Spirit of the Laws) Montesquieu notes the importance of the distinct separation of the three branches of the constitution:
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“When legislative power is united with Executive power, in a single person or in the single body of the magistracy, there is no liberty because one can fear the same monarch or senate who makes tyrannical laws can execute them tyrannically.”
Montesquieu also claimed that the three branches should have equal power and influence and this “equality” of the functions would ensure none were deemed more powerful than the others and thus risk the mere being of the SOP.
SOP is a subject that has been debated furiously throughout history, collecting believers and non-believers of the extent of its existence, along the way - but the importance of the SOP cannot be understated. It aims to prevent any overlap between the three branches in terms of function and personnel and provides a system of checks and balances to avoid any attempt at the abuse of power. The true extent of the SOP is hard to calculate, as there is a constant flux between the three branches, but this again illustrates the flexibility of the UK's constitution and the inherent adaptability the UK possesses. The creation of the Supreme Court has established a significant amount of space between the judiciary and the other limbs, leading to the conclusion that the three branches are not, and never have been, entirely separate. It appears at first glance the true extent of the SOP in the UK is more likely to be “partial”.
The two conflicting theories are that of “full” and “little or no” separation. Contrary to the US, which formally created an SOP as part of its written constitution, the general development of the SOP in the UK has evolved over many years. As the UK's constitution is uncodified, those who do not believe a formal SOP exists in the UK will point to the constitution's informal and fluid nature and highlight many areas where the three branches regularly merge and conflict.
However, this argument is somewhat counteracted by the enactment of the House of Commons (Disqualification) Act 1975 (HCDA) and the Constitutional Reform Act 2005 which have formalized its existence and put it on an equal footing along with the other core constitutional principles such as Parliamentary supremacy and the Rule of law.
Lord Diplock's view in Duport Steels v Sirs was very clear: “It cannot be too strongly emphasized that the British constitution, although largely unwritten, is firmly based on the separation of powers.”
However, Bagehot favored the partial separation doctrine that the UK's constitution has evolved over time with little fuss. Hilaire Barnett in his book “Constitutional and Administrative Law 2009” went further, “the separation of powers is neither an absolute nor a predominant feature of the UK constitution”.
Key milestones in its development are the Magna Carta (1215), the Bill of Rights (1688), the Act of Settlement 1700; and later, the Constitutional Reform Act 2005 which saw a strict separation between the legislature and the judiciary. This slow process saw powers removed from the remit of the Crown and placed into the hands of the Legislature - ergo, the people.
Executive and Legislature
Separation:
This paring holds the weakest separation as the Government is derived from Parliament. The Prime Minister is “primus inter pares” (Senior member of the group). Bagehot, believes in the need for overlap, “The reason the constitution works well is because of the connecting link between Parliament and Government by the Cabinet”.
The HCDA s1 - states that civil servants, the police, and members of the armed forces cannot be MPs. In the same Act, s2 states that there can only be 95 Government Ministers in the Houses of Parliament.
Overlap:
The “First Past the Post” electoral voting system means the Government has an inbuilt majority in the Commons, which sees it usually get most of its political plans past the legislature. Lord Hailsham previously asked, “Is it an elective dictatorship?”
Government Ministers make delegated legislation and perform a legislative function.
In addition, they are nearly all either MPs or Members of the House of Lords. Most Bills are instigated by these Ministers, who have the power to dictate the Parliamentary legislative timetable.
Checks and balances:
Government Ministers are accountable to Parliament through individual and collective ministerial responsibility. They are also held to account by questions, debates, and select committees. There is limited power to scrutinize delegated legislation but the ability to use the Henry VIII powers to amend some primary legislation illustrates the substantial powers of the Executive.
There is also a limited power of the Commons to scrutinize certain parts of the Royal Prerogative such as national security. The weaker House of Lords, after the Parliament Acts of 1911 and 1945, have much-reduced power (merely a revising chamber of unelected Members). However, Parliament can pass a vote of no confidence in the Prime Minister.
Executive and Judiciary
Separation:
The Lord Chancellor, one of the most historic offices of State, was until 2006 head of the Judiciary and the Speaker of the House of Lords, and was also a senior member of the Cabinet, creating a direct overlap of all three branches of State. After many years of discontent about the overlap between these branches, the CRA made provision for the creation of a new Supreme Court, physically relocating it out of the Palace of Westminster and into Parliament Square. The Lord Chancellor stepped down as head of the Judiciary and a new Supreme Court was created, meaning that the most senior judges are now entirely separate from the Parliamentary process. This latest constitutional step to the Judiciary is described as significant as the signing of the Magna Carta.
The CRA established the Lord Chief Justice as President of the Courts of England and Wales and Head of its Judiciary, a role previously performed by the Lord Chancellor. According to the Courts and Tribunals Judiciary, “for the first time, an express statutory duty is placed on the Lord Chancellor and other Ministers of the Crown to protect the independence of the judiciary. For the first time in its 1,000-year history, the judiciary is officially recognized as a fully independent branch of the government”.
Today, senior judges enjoy “security of tenure” (s33 The Constitutional Reform Act 2005 (CRA) and s11(3) Senior Courts Act 1981 (SCA)) with retirement set at 70 (by the Judicial Pensions and Retirement Act 1993) and their salaries are paid from the consolidated fund therefore not subject to political interference.
Judges were previously appointed through an informal procedure, but this was formalized by the CRA, where now the Judicial Appointments Commission is responsible for the appointments. Judges enjoy immunity from civil suits and protection from contempt laws. There has always been an unwritten rule that Government Ministers do not criticize the judges, but in recent times, the controversy over Brexit has meant this rule has been tested considerably, not least after the Miller prorogation case.
Overlap:
The Queen is a member of both branches, but her role is purely ceremonial. Public inquiries are appointed by the executive but have a judicial function. There is a quasi-judicial role played by Ministers in planning decisions and compulsory purchase order cases. There is a risk of politicization of the judiciary by the executive, as raised in the Hutton Report, which looked into the Government's claims of weapons of mass destruction during the second Iraq war, the Leveson Inquiry into the phone hacking scandal, and the impact of the Human Rights Act 1998.
Checks and balances:
The greatest tool for ensuring the Government does not exceed or abuse its power, or work in a way that impinges on society is through Judicial Review. This applies to statutory powers and Royal Prerogative powers. Judicial review only reviews the legality of decisions, not the reasons or merits for a particular decision.
The courts also have the ability to interpret statutes independently, so are in effect able to challenge the legislature, but this is usually done with great care and limitations on the interpretation.
Judiciary and Legislature
Separation:
This paring of branches is more settled since the CRA in that the Lord Chancellor is no longer Head of the Judiciary or Speaker of the House of Lords. It also ensured that no future justices of the newly created Supreme Court would become Lords.
In addition, the HCDA s1 prevents judges from becoming MPs. As mentioned previously, it is a convention that the other two branches do not criticize the judiciary and in return, the judiciary does not engage in political comments or activities. The sub-judice rule ensures that Parliament does not debate pending legal proceedings and the courts cannot strike down legislation on the grounds of unconstitutionality. Finally, and of great importance, the Bill of Rights 1689 is still ensuring the freedom of speech in Parliament, after all this time, (courtesy of Parliamentary privilege).
Overlap:
If a particular development or direction occurs in the judge-made, common law is not welcomed by Parliament, it can change the laws to counteract this. This applies to the closing of loopholes in the law, where they arise or are abused.
Checks and balances:
Judges can be dismissed for bad behavior. Both Houses of Parliament have the power to petition The Queen for the removal of a judge of the High Court or the Court of Appeal. This power originates from the Act of Settlement 1701and is now contained in s11(3) of the Supreme Court Act 1981. According to the UK Judiciary, it has never had to be exercised in England and Wales. However, after a Freedom of Information request in 2008 by the Guardian newspaper, they discovered two judges were in fact dismissed for misconduct in 2005.
Conclusion
Just as Alison Young claimed in the quote provided, the SOP has, and always will be, of significant importance to the UK's makeup and constitution. It is clear from the information above, that there are three separate branches of the state, that do undertake different roles, with different people, and for differing purposes. Sometimes, these roles overlap with and contradict the other branches to a greater or lesser degree. On certain matters, the three branches come together to resolve issues as they arise. This makes the UK's unwritten constitution flexible, adaptable, and democratic. The importance of any separation is the ability to come together for the greater good.
As Lord Diplock rightly advocated, the SOP is clearly intact, but to what extent? Barnett's assertion that separation is no longer of practical importance is far wide of the mark. More likely, in these modern times, Bagehot's talk of a partial overlap is most likely. A key characteristic of that separation is having the power of three branches, mostly working in harmony, ensuring the UK can maintain its position in the world. Unlike other codified constitutions such as the US, the UK can quickly move to full separation when required, and back to a “group” position where the three branches overlap and support each other.
As for the future, post-Jackson, there is a question of whether the courts could go against convention and strike down a piece of legislation if it undermined the rule of law or any other key doctrine of the UK. With the constitutional challenges of recent times such as Brexit, the lines of opinion are becoming blurred, pitting the three branches against one another. This, however, does not mean less SOP. In fact, to maintain the UK's SOP, all three branches need to act as a family unit: know their place, agree or disagree, they still remain vital parts of the “Group”. This ability and willingness are what make the UK what it is today. Unique, strong, and great.
So, it could be rightfully claimed, that “Young” and “Diplock, Barnet, and Bagehot” are all correct in their arguments concerning the SOP. Sometimes, there is full, partial, or little-or-no SOP in the UK - as it all depends on what is going on “constitutionally” at the time. However, despite the extent of its existence varying at times, its fundamental importance to the constitution does not. The SOP the UK enjoys makes the nation what it is. It ensures the “Great” in Great Britain remains relevant into the future, just as it has in the past.
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